It's clear from the draft that the commission made excellent use of
the City Ethics Model Code. The result is a good draft that
falls short in a few very important areas.

Most important, the ethics commission would be selected by the mayor.
The mayor would even select who the chair is, something that is
ordinarily left to a board or commission. Any time the commission is
seen as letting off the mayor or a mayoral ally, or coming down hard
on a mayoral opponent, it will undermine the public's trust in the
ethics program. There would be a big conflict at the heart of a
program designed to prevent conflicts and to gain the public's trust
in its city government. Ethics commission independence, real and
perceived, is the single most important part of an ethics program.
It is the foundation on which everything else stands.

Second, there is no provision for informal ethics advice. Guidance
is the principal goal of a government ethics program. It should be easily and quickly available. And it should be independent. The
draft code provides for an ethics compliance officer, but does not
say who will appoint her. Will it be the mayor, the city manager, or
the ethics commission? The best practice is to have the officer
appointed by and responsible to no one but the commission.

If an ethics compliance officer is not appointed, the City Attorney
must perform the duties of the ethics compliance officer.

Since there is only one reason the commission would not appoint a
staff member – an insufficient or nonexistent budget – this means
that the city attorney is contemplating that the ethics officer will
either not be appointed by the ethics commission, or that the commission will
not be given a budget by the mayor and council. And it is no
surprise who the city attorney recommends to act as ethics officer
in the event the mayor and council do not appoint someone for the
position. No city attorney (or, for that matter, no high-level
official) should have a role in ethics advice or enforcement.

Third, those doing and seeking business with the city are not
brought into the program by this draft code. There is no applicant
disclosure. There is no limitation on making gifts to officials.
Businesses, including consultants, are not even brought under the
commission's jurisdiction.

Lesser problems include:

(1) the gift limit of $3,000 for the mayor and council members is
far too high;

(2) the most unusual provision of the code, allowing all sort of
officials to make their own ethics rules and regulations, as long as
they're more strict, spreads ethics authority (and training, advice,
disclosure, and discussion of ethics reform?) too broadly. It is
true that ethics provisions are minimum rules, but there are other
ways than more rules to require more of officials and employees.
City leaders can let it be known that doing the minimum is not
enough, and they can require that their charges seek ethics advice
whenever there is a question. Presumably, the ethics compliance
officer, if one is permitted, will treat ethics provisions as
minimum requirements and provide officials and employees with the
guidance they need to prevent conduct that appears improper.

(3) the ethics commission and ethics officer should oversee ethics
training, not the city manager;

(4) disclosure of confidential information should not an ethics
violation; it only becomes an ethics violation when it is done to
benefit someone. Sometimes, it is important to disclose confidential
information, for example, information improperly disclosed in a
closed session or that has been made confidential in order to keep
it secret from the public;

(5) votes of the ethics commission should not require four votes,
because there will be many times when there are no more than four or
five members in attendance. A frequent problem is an ethics
commission with open seats, often because the appointing authority
does not want it to function. Requiring four votes to investigate or
enforce makes it easier for the appointing authority to prevent the
commission from enforcing the code. Another reason why officials
should not be selecting commission members.

(6) 90 days is far too short a time for an ethics commission to make
a decision on a complaint. The procedures should be better worked
out, including a provision for settlement. It is odd that the
respondent is the one who determines whether there will be a hearing
or not. There might be occasions where the commission feels it is
the best course.

Despite these criticisms, this is a better-than-average draft code.
It is an excellent start to what will hopefully be a process that
ends with an independent, comprehensive government ethics program
for Kansas City.